The decision of the Bush Administration to accept that the Second Amendment
protects an individual right to keep and bear arms shifts the focus of the
debate on firearms regulation from interpretation of the Second Amendment to
interpretation of the other clauses of the Constitution that affect such
regulation.

The position appeared as footnotes in briefs arguing against granting the
appeals of two cases to the United States Supreme Court, issued in a statement
by U.S. Solicitor General Theodore Olson, and thought to represent the views of
Attorney General John Ashcroft. Olson argued that the U.S. government may
restrict the right of "unfit" persons to purchase, possess and use
"firearms that are particularly suited to criminal misuse".

The first case, U.S. v. Emerson, was a federal criminal prosecution against
Timothy Emerson for possession of a firearm, based on the fact that a Texas
divorce court had issued a routine protective order not to approach his
estranged wife. The federal statutes prohibit purchase or possession of
firearms by persons thought to be unfit, based on such evidence as conviction
of a crime punishable by incarceration for more than one year, a history of
mental disorder or substance abuse, or a history of having been subject to a
protective order. The indictment against Emerson was quashed by a federal
district court judge, Sam Cummings, on the ground that Emerson had a right to
keep and bear arms which made the federal statute unconstitutional. However,
the indictment was reinstated by the Fifth Circuit Court of Appeals, which
agreed Emerson had the right, but that such a right could be subjected to
reasonable regulation.

The second, Haney v. U.S., is an appeal of a conviction of John Lee Haney of
Oklahoma for possession of two "machine guns".

The basic issue is, what authority, if any, does the U.S. government, or for
that matter, a state government, have to prohibit purchase, possession or use
of a firearm, and enforce that prohibition with criminal penalties.

Most laypersons think that a constitutional "right" is something
that may not be restricted, or in the legal term, "disabled", by
legislative or administrative regulation or taxation, but only by a court, in
an individual case, in which either the exercise of the right conflicts with
the exercise of a right by another person, the person is adjudged mentally
incompetent, or as punishment, prescribed by statute, for a crime for which he
has been convicted and sentenced in a trial. This belief is based on the Fifth
Amendment, which states "No person shall ... be deprived of life, liberty,
or property, without due process of law; ...", and on the language of the
First Amendment, "Congress shall make no law ...", and of the Second,
"... shall not be infringed."

The problem is that the exercise of a right may be relabeled as something
that is subject to regulation or taxation, and regulated or taxed under that
other label. This had led to a variety of rules, sometimes called "strict
scrutiny", for deciding whether some regulation or tax imposes an
"undue burden" on the exercise of a right.

There is also a problem with the definition of "due process". With
the acceptance of keeping and bearing firearms as a right, the U.S. government
is in the position of maintaining that it may legislatively disable, and
criminally prosecute, the exercise of one right, call it A, on the basis that
another right, call it B, was disabled in a proceeding in a court of another
sovereign. That might work if A were a "privilege", granted at the
discretion of the government, but there is a problem with legislatively
declaring that some people are "unfit" to exercise a
"right", or making an exception for firearms "particularly
suited to criminal misuse".

The disablement of one right A may be included within the disablement of
another right B. For example, if B is disablement of the right of liberty for
ten years, then a disablement A of the right of liberty for two years could be
considered included within B, provided that it begins at or after the
commencement of B and ends at or before the ending of B, but not if, say, it
commenced nine years into the ten-year period of B. On the other hand, if the
grounds for A were different from B, so that if the disability B were removed,
the disablement A would continue in force, then A, if not imposed as part of
the final order of the court, as punishment for a crime, would be
constitutionally prohibited as ex post facto.

Now suppose the State of Texas made it illegal, punishable by ten years in
prison, for any person to live, work, or do business in Texas, who had ever
been convicted of a crime punishable, but not necessarily punished, by a year
or more in prison, or who had a history of mental illness or drug abuse, or had
been the subject of a protective order -- in any other state or nation. Would
that be due process -- under the Texas Constitution, or under the 14th
Amendment to the U.S. Constitution? If not, then how can it be due process for
the federal government to prosecute someone for exercising a right based on
similar profiling of the legal history of a person in a state court?

In a criminal trial the court hears a petition from the government to do
three things: disable one or more rights of the accused, impose a penalty
allowed by that disablement, and order someone to carry out the penalty, which
is prescribed by a statute for the class of offense with which the accused is
charged. The standard of proof is "beyond a reasonable doubt", and
the accused has a right to a unanimous verdict by a jury of twelve persons,
randomly selected from the community. We say the accused is
"convicted" when the verdict is "guilty", but does that
verdict disable any rights? No, only the final sentencing order of the court
can do that. There can be some argument among the parties over what the
punishment should be, but at some point, the sentence is final, and may not be
re- opened to expand the disablements or increase the penalties imposed.

It is sometimes said the accused "loses all rights" upon
conviction, but clearly this is not true. First, constitutional rights are
never "lost". If they were, the government couldn't restore them,
because the government is not the source of constitutional rights. The exercise
of rights may be "disabled", and such disabilities
"removed", but it is the final order of the court, not the verdict,
that does that. The verdict authorizes the judge to issue the final order, but
by itself it disables no rights, and imposes no penalties.

But if the rights are only disabled by order of the court, then how can
rights not expressly disabled by a final order of a court be disabled by
legislation, so that it becomes a crime to exercise them? If the right were
included in the right disabled in the final order, perhaps, but is the right to
keep and bear arms an implied part of the right of liberty that might be
disabled by a sentence in a trial, or by an order in a competency, custody or
protective hearing? It is constitutional to disable the right to possess a
firearm while in actual detention, or on probation, but after the disablement
has expired, if the right to possess a firearm was not expressly disabled in
the sentencing order? Never mind that there might be a statute prescribing that
the right is disabled upon "conviction" of a crime
"punishable" by imprisonment. The statute might prescribe that the
disablement be made in the sentencing order, but if the judge does not include
that disablement expressly in the sentencing order, may the government
effectively re-open the case and disable a right the judge didn't? Would that
not be constitutionally prohibited ex post facto? Would the re-opening not be
constitutionally prohibited double jeopardy? Is disablement of the rights of a
class of persons based on their history in court, other than on what is
expressly stated in a court order, not a constitutionally prohibited bill of
attainder?

Now that the U.S. Department of Justice accepts that it is an individual
right to keep and bear arms, it is time to treat that right in a way that is
consistent with the way we treat all other constitutional rights. It is time to
argue for rights labeled by a letter, and forget about what the letter might
stand for, to arrive at a consistent jurisprudence.